Focus
Red Lion Chambers’ Focus on Fraud Blog
Welcome to the first edition of FOCUS – Red Lion Chambers’ deeper dive into cases and issues flagged up in our monthly Fraud Newsletter. The newsletter goes out to a wide audience and from overwhelmingly positive feedback we know that it is a useful resource for fraud practitioners, academics and Judges alike. In each issue of FOCUS, members from Red Lion’s Business Crime Practice Group will provide analysis of important decisions, significant legislative change or policy announcements, to deepen understanding of developments in this ever-growing field of practice.
We are delighted to launch FOCUS with a conversation with RLC’s own Jonathan Fisher KC, author of the first part of the recently published Independent Review of Disclosure and Fraud Offences. We begin with a summary of the report, followed by a Q&A with Jonathan to tease out a little more detail of the review and place a spotlight on some of his recommendations.
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Red Lion Chambers is keen to hear from you if you would like to discuss any of the issues raised in these articles or in the newsletters. Please feel free to comment or to email us. We intend to have a series of roundtable sessions to facilitate further discussion. Please get in touch if you would like to attend and feel free to suggest particular topics or issues that you would like us to focus on.
Ed Vickers KC (Editor, Focus)
Faras Baloch (Editor, Fraud Newsletter)
Disclosure in a Digital Age – An Independent Review of Disclosure
Following the publication of the Fisher Review, Ed Vickers KC and Andrew Herd sat down with Jonathan Fisher KC to discuss the challenges facing practitioners dealing with the vexed issue of disclosure, and Jonathan’s suggested solutions.
Published on 20 March 2025, Jonathan Fisher KC’s report, ‘Disclosure in the Digital Age’ is the first of a two-part review focused on the challenges of investigating and prosecuting fraud in the modern digital landscape. It marks the first independent review of fraud since 1986, at a time when the scale and nature of fraud has changed significantly, now accounting for over 40% of all offences in England and Wales (albeit the vast majority currently going unprosecuted). Part One deals with disclosure, and includes an historical review of disclosure, sets out the legislative framework and guidelines, explores in detail the challenges to the Criminal Justice System in modern cases and then gives its recommendations. Part Two, ongoing in preparation, will deal with the current landscape of fraud offences, including procedure and penalties.
The significant challenges posed by the explosion of digital material in recent years is familiar to all practitioners in this field. Digital evidence, particularly unused material, places immense burdens on police, prosecutors, defence practitioners, and the courts, often causing delays, and at times leading to miscarriages of justice, or failed prosecutions when disclosure obligations are not met. Eye watering statistics include that a quarter of the Serious Fraud Office’s (SFO) operational budget in 2023 was spent on its disclosure obligations. The largest SFO casefile contained 48 million documents. In the final quarter of 2023 disclosure issues were responsible for the collapse of 4,000 cases, which account for a quarter of all cases across the country. Meanwhile, police spent 210,000 hours on redacting material for cases that did not progress beyond the CPS.
The Fisher Review highlights a multitude of issues, including the overwhelming burden of manually reviewing and scheduling material, the inadequate statutory framework for using electronic tools such as search engines and AI in disclosure, and insufficient early engagement with disclosure issues in criminal proceedings. It also identifies a "skills gap" at the investigation stage, with disclosure officers facing heavy workloads, extensive redaction responsibilities, and poor access to advice.
In response, Jonathan has made 45 recommendations to the Home Secretary. He advocates a range of measures to modernise the disclosure regime. These include formally recognising the use of electronic search tools and AI and providing enhanced training for investigators and prosecutors. The 45 recommendations are here.
The review also recommends introducing early case management reforms, such as an Intensive Disclosure Hearing, and the early provision of the Disclosure Management Document (DMD) to encourage defence engagement. It proposes placing new legal duties on the defence to engage proactively with disclosure, backed by judicial sanctions where necessary.
To facilitate good practice, the report recommends new disclosure approaches, including the standardised return of defendants' own material, and streamlining disclosure in cases where a guilty plea is anticipated. It also suggests formalising and enhancing career development pathways for police officers specialising in disclosure.
Importantly, the review does not recommend changing the definition of unused material, altering the disclosure test, or adopting a “keys to the warehouse” approach (i.e. providing all the unused material to the defence), concluding that maintaining the existing legal framework is essential to preserving fairness and proportionality in the criminal justice process, and to guard against further stretching the capacity of an already overburdened defence lawyers.
Q & A with Jonathan Fisher KC
1. Why has disclosure become the central issue in the failure of so many well publicised cases?
JFKC: Difficulties with disclosure issues have hovered over the criminal justice during the last fifty years. History records several IRA cases, several super grass cases and of course more recently cases like the Malkinson case where critical pieces of information, often relating to the presentation of expert evidence or important information held by the prosecution has not been disclosed. The answer as to why these failures occur is multifaceted. Sometimes the prosecution has simply not appreciated the importance of the material, and it is a case of negligence or incompetence rather than malign design. Also, I fear that investigating police officers have not always enjoyed a clear understanding as to how the rules of disclosure work.
Today, there is an added problem in cases where there is a high volume of digital unused material. The investigating authorities, typically the SFO, are swamped by the material and notwithstanding sometimes Herculean efforts they have insufficient resources to enable them to review the material with the care which is required.
2. Have judges or prosecutors been too quick to stop or discontinue cases where there have been ‘failures’ in disclosure?
JFKC: No, I don’t think so. In fact, it is the other way around. Judges and prosecutors work hard to save a trial where there has been a failure to disclose or delayed disclosure. But ultimately the interests of justice must prevail, and if a defendant cannot have a fair trial due to non-disclosure or delayed disclosure, then the case must be stopped for abuse of process. The interests of justice, requiring a fair trial for an accused, are paramount and non-negotiable.
3. Why have you decided against recommending a “keys to the warehouse” approach to disclosure?
JFKC: First, the keys to the warehouse approach would significantly increase cost and precipitate delays, since the same unused material would need to be reviewed by both the prosecution and (multiple) teams of defence solicitors and counsel. There would be a duplication of function, compounded in a multi-defendant trial. The additional costs to the legal aid would be significant and could not be justified where there is an alternative approach.
Secondly, few legally aided defence solicitors would be adequately resourced to review such a large volume of unused material. It is not simply the labour cost involved. There is also the question of having access to the relevant computer systems. If a licensing arrangement could be worked out, additional costs will still be involved.
And there would be difficulties for non-represented defendants as well.
Thirdly, an enormous amount of work would need to be undertaken on the unused material by the prosecution regarding redaction of confidential data before the unused material could be handed to the defence. Bearing in mind that there is much unused material in which the defence is not likely to be interested, considerable waste of resources in redacting the material would be incurred.
Finally, the keys to the warehouse approach is inconsistent with the prosecution obligation to hold a fair trial. As is said in court, the State brings the case, and it is incumbent on the State to prove it. Also, it is incumbent on the State to guarantee an accused a fair trial, which includes an obligation to disclose unused material which undermines the prosecution case or advances the defence case. The requirement is recognised in Article 6 of the European Convention on Human Rights and a string of criminal appeal cases decided in the Strand.
4. You recommend greater use of AI in disclosure searching and scheduling: how do you think a judge or the defence might identify when human intervention is appropriate?
JFKC: The intention is that the use of AI in disclosure searching and scheduling is to become the default position and the schedules produced by the metadata should disclose sufficient information about the underlying material to enable the parties to determine whether or not they wish to inspect the material. It is difficult to foresee all eventualities, but it is possible that circumstances could arise where a Judge is persuaded to order a human review where he is satisfied that something might be missed by the AI analysis. Inevitably, the circumstances will vary from case to case. As I say, each case will depend on its own facts, but if the schedule produced by the metadata is unclear, then the Judge can be expected to order a manual review.
As time progresses and the AI programmes continue to develop, I would expect the need for a human to schedule the material to become less and less.
5. The issues raised by the Horizon cases have exposed the risks associated with current AI technology, such as hallucinations. How can the public be confident that the State will ensure that the best system is procured; and how can practitioners and judges be assured that the AI systems are operating reliably?
JFKC: The important thing to understand is that there is a crucial distinction to be drawn between generative material produced by AI and non-generative material. At the present time the disclosure regime is harnessing non-generative techniques where the accuracy of the outcome involving the production of schedules and identification of relevant documents will depend on the nature and extent of the unused material fed into the computer programme. In order to ensure that the system works well, I have been keen to indicate in the Review the vital importance of the disclosure officers’ role, the need for professional training, and a proper career structure. I understand the concern about confidence in the use of AI programmes, but this is clearly the way forward. The operation of the disclosure process will remain a process which is under constant observation by the investigating authorities.
6. In the real world of our under-resourced, publicly-funded Criminal Justice System, how likely is it that investigators, judges and practitioners will be given and undertake the training you recommend and have sufficient additional time to make your proposed ‘intensive disclosure regime’ work?
JFKC: When my Review was presented to Parliament the Minister for Fraud in the House of Lords indicated the Government’s intention to implement my recommendations. This is a case where a small amount of money needs to be spent to save much larger funds. With the increased use of info-tech to produce schedules of unused material, significant and valuable investigating officers’ time will be saved. Similarly, when defendants are required to participate in early engagement with the Court and prosecution at the Intensive Disclosure Regime Hearing, again significant savings in terms of time and labour can be expected to follow. In short, the disclosure of unused material process will work more effectively and the savings in Court time should help, in due course, with the backlog.
7. The government has stated that they propose to implement your recommendations in full. What are the main challenges in implementing your recommendations? Which of your 45 recommendations will have the greatest impact in solving the current problems?
JFKC: I was careful to say in the Review that there is no “silver bullet” which would solve the problems and that my recommendations needed to be considered as a package. There are some simple “hits” which can be implemented very quickly and effectively, for example, the return of defendant’s own property in a single defendant case without the need for the prosecution to prepare a schedule of this material, and also where a “data room bubble” can be erected to cover the passing of material between the police and the CPS without the need for redaction. But as I say, there is no “magic wand.”
8. In Part Two of your review, you have been asked to look specifically at the scope and reach of current fraud offences, including issues of venue, procedure and penalties. What are the principle issues you are focusing on, and when will that review be published?
JFKC: Part Two of the Review will be completed by the end of the year and I have a broad remit to consider issues in the life cycle of a fraud case.
Regarding reporting and disruption, I am interested in the means and methods by which law enforcement agencies can detect and disrupt fraudulent activities. This may include evaluating incentives for criminal fraud networks informantsand whistleblowers.
As part of the Review, I shall be evaluating whether fraud offences and the Fraud Act 2006 can keep pace with modern offending such as ID theft, abuse of deed poll and the use of artificial intelligence and considering whether there should be a greater role for civil penalties.
And I am sure I will be considering much more.
Jonathan Fisher KC is a leading silk at Red Lion Chambers. He specialises in financial crime, proceeds of crime, fraud (both civil and criminal), and tax cases. Since 2006, he has been a Visiting Professor in Practice at the London School of Economics, where he holds a PhD.
Jonathan was assisted in the review by RLC’s Anita Clifford. Anita defends and prosecutes business crime cases and is a leading junior in POCA matters.
Faras Baloch and other and members of Red Lion Chambers were involved in the practitioner’s panel for the Review. Faras is editor of the Red Lion Fraud Newsletter and is a leading junior in business crime.
Ed Vickers KC took silk in 2017 and has a mixed practice of fraud and serious and complex crime. He is the editor of Red Lion Chambers’ Focus on Fraud blog.
Andrew Herd was called in 2015 and specialises in business crime cases.